What to know about court-martial trial
General says act was consensual; gap in power questioned
Maj. Gen. Phillip Stewart is in select company, and not in a good way: The former combat pilot is only the second general in Air Force history to face a court-martial.
Stewart is charged with sexually assaulting a female officer last April at an Air Force base in Oklahoma. A month after the alleged incident, Stewart was sacked as head of the 19th Air Force, the service’s pilot training arm headquartered at Joint Base San Antonio-randolph.
In December, Stewart’s commanding general ordered him to stand trial. He’s accused of sexual assault, conduct unbecoming an officer, dereliction of duty and other violations of the Uniform Code of Military Justice. If convicted of all charges, Stewart could be sentenced to up to 63 years in a military penitentiary.
It’s been a steep fall from grace for a man who once flew fighterbombers and high-altitude spy planes, held command positions in Iraq and Afghanistan, and oversaw 32,000 employees as head of the 19th Air Force.
Here’s a summary of what we know about the case, drawn from the reporting of Sig Christenson, military affairs reporter for the San Antonio Expressnews.
What are the circumstances of the alleged sexual assault?
Military investigators say it happened at or near Altus AFB in southwestern Oklahoma on April 13, 2023, and again the following day. The alleged victim is a female officer who was under Stewart’s command.
It’s undisputed that the two had sex. At issue is whether the woman did so voluntarily or felt compelled to submit to Stewart because of his rank. There’s no evidence he used physical force against her.
What is Stewart’s defense?
He contends the two had a consensual affair, the woman never said “no” and nothing in her behavior indicated she wasn’t a voluntary participant.
Air Force prosecutors aren’t buying that argument. They contend that given the vast power differential between the two, the woman had no choice but to submit.
What does the evidence show?
Like the evidence in any criminal case, it’s subject to interpretation. How you view it depends on which side you’re on.
The evidence was aired at an Article 32 hearing at Randolph in October. It’s similar to a civilian grand jury proceeding. The hearing officer makes a recommendation up the chain of command as to whether there’s sufficient evidence of a crime to put the defendant on trial.
In this case, Air Force Col. Brian Thompson recommended against a court-martial. In so many words, he said the case was so weak prosecutors would never obtain a conviction.
“At no point did (the alleged victim) express, through words or conduct, that she was not freely agreeing/consenting to engage in the sexual acts with accused,” Thompson wrote in his Oct. 29 report.
He cited comments she made to Air Force investigators who interviewed her a month after her encounter with Stewart:
“And I’ve never told him no for anything, and I’m … I don’t know why … I couldn’t. I just let him, and it was like some weird autopilot like, like, it wasn’t even me … it was just mechanical.”
The woman “engaged in conversation with (the) accused during breaks between the sexual acts, laughing at him, teasing him, and complimenting him, talking about how they would keep the sexual encounter from their spouses, letting him know
she had an IUD,” Thompson wrote.
Thompson said Stewart and the woman lay in bed together “for long periods of time when they were not engaged in sexual acts. During this time, they interacted consistent with individuals engaged in a consensual encounter.”
The hearing officer was unequivocal: “I will not hedge; even taking the evidence presented in the light most favorable to the prosecution, no rational trier of fact could find the elements of sexual assault here beyond a reasonable doubt.”
He urged that all the charges be resolved through administrative disciplinary processes, which could include a reduction in Stewart’s rank.
Why wasn’t that the end of it?
The decision whether Stewart should face a court-martial lay with his boss, Lt. Gen. Brian S. Robinson, commander of the Air Education and Training Command, based at Randolph.
Robinson was not convinced by Thompson’s reasoning. He ordered Stewart to stand trial on all the charges.
What did he see that the hearing officer didn’t?
Robinson has declined to comment, and the Air Force won’t say anything beyond confirming that Robinson “reviewed all evidence and the Article 32 preliminary hearing officer’s report in deciding to refer all preferred
charges to a court-martial.”
Still, evidence that emerged during the hearing could be viewed as bolstering the charges against Stewart.
For instance, the woman told Air Force investigators that “she believed in her mind that the sexual acts were nonconsensual.” She said she was “just too shocked and scared to say anything,” and that Stewart “never asked if it were OK. He never asked if I wanted to.”
During the Article 32 hearing, Lt. Col. Pete Havern, special trial counsel for the Air Force, said that when she spoke with investigators about Stewart, “she calls him boss.”
“I lost count in that interview,” Havern said. “That speaks volumes.”
Havern also said that although the woman did not overtly resist, she tried to deflect Stewart’s advances by saying her husband would be angry if he found out.
What other evidence was there?
It turns out that a month before their encounter in Oklahoma, Stewart pressed the woman to spend the night with him in a hotel room.
It happened on March 7, 2023, in Denver, where they were among military personnel attending a conference. Thompson described the incident in his report on the Article 32 hearing.
Stewart texted the woman three times urging her to join him in his room, according to Thompson’s report. She declined. She later became upset over the exchange and showed the texts to the 19th Air Force command chief and an aide, “who thought accused’s efforts were ‘shady,’ ” Thompson wrote. “They were shady,” he went on. “Perhaps accused would assert that he was just looking out for the safety of one of his subordinates who was drinking late into the night. But he did not offer to secure transportation for her or offer to try to get her a room at the conference hotel.
“Rather he wanted her to come sleep in his room with him, at least at the outset on separate beds, and was disturbingly persistent in making this offer,” Thompson wrote. “It is not difficult to define accused’s actions … as unbecoming an officer.”
Nonetheless, he recommended that “this offense be disposed of other than by court-martial.”
What are the other charges against Stewart?
In addition to sexual assault and conduct unbecoming an officer, he’s charged with dereliction of duty and extramarital sexual conduct.
He’s also accused of flying an aircraft within 12 hours of consuming alcohol, a “throttle-tobottle” violation. It allegedly happened at Altus on April 14, 2023, around the same time as his sexual encounter with the female officer.
Where does the case stand now?
Stewart’s lawyers have petitioned Robinson to allow him to retire rather than face trial. In that event, Stewart would go before a grade determination board to set his final rank. If he was busted down in rank, he could see his military retirement benefits slashed.
Robinson will make a recommendation on Stewart’s petition to Air Force Secretary Frank Kendall III, who will have the final say.
If Stewart’s request to retire is denied, he will go before a courtmartial in June.
How rare is it for an Air Force general to be court-martialed?
It’s happened only once before in the service’s history. In that case, Maj. Gen. William T. Cooley, commander of the Air Force Research Laboratory at Wrightpatterson AFB in Ohio, was convicted of engaging in abusive sexual conduct against his sister-inlaw at a backyard party in 2018. He was reduced to the rank of colonel. He retired in June 2023.